KINGSTON – The Board of Health has been served a summons by Kingston Wind Independence to answer to questions in Superior Court about the noise abatement order that dictates when the turbine must be shut down.

KWI alleges that the order shutting down the wind turbine under certain conditions does so for substantial amounts of time based on an “erroneous ruling” and, as a result, has caused and would continue to cause significant financial hardship to its business.

The town has 20 days from Dec. 16 to respond.

If a Superior Court judge sides with the town and upholds the Board of Health abatement order against the turbine owners, KWI asserts that Kingston will have breached its contract with the company.

“KWI has performed its contractual obligations and complied with all operational and technological stipulations in the contract,” the appeal states. “The Town of Kingston and Board of Health have failed to honor the agreement and instead have substantially interfered with KWI’s ability to meet production standards.”

KWI has requested that the Superior Court vacate the modified abatement order, hold a hearing to find the order in error, declare the town in breach of contract and assess damages.

Monday night, the Board of Health held an executive session to discuss its strategy in response to the KWI complaint. Board of Health Chairman Bill Watson would only say that the town’s attorneys are preparing a response.

Town Administrator Robert Fennessy said Tuesday that, in addition to town counsel, the town’s insurance carrier, the Massachusetts Interlocal Insurance Association, has been notified. MIAA is involved because KWI’s contract for operation of the turbine on town land is with the Board of Selectmen.

Fennessy said he and less than a quorum of the Board of Selectmen met with representatives from KWI Dec. 4 to hear the company’s concerns and to talk about KWI’s intent to file the appeal of the Board of Health ruling. KWI had requested the meeting with selectmen before the Board of Health issued its order in October.

The abatement order amended by the Board of Health in October requires that the turbine be shut down year-round between the hours of midnight and 4 a.m. when wind speeds reach at least 7 meters per second at the turbine hub, regardless of wind direction, and between 11:30 p.m. and 4:30 a.m. when wind speeds exceed 9 meters or more per second at the hub, also regardless of wind direction.

KWI did not accept the previous order approved in August 2014 as valid but did not contest the board’s ruling. With the modified order “placing additional and more onerous restrictions” on the operation of the turbine, the company decided to appeal.

“The reasoning behind the modified order is flawed,” the appeal states. “The Board of Health relied upon guesswork promulgated in the guise of alleged mathematical extrapolations, assumptions and predictions.

“The restrictions of the modified order are arbitrary, capricious, unreasonable, oppressive and fundamentally impracticable.”

The appeal makes no mention of the role of the state Department of Environmental Protection in advising the Board of Health on compliance with state noise regulations and policies.

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